Texas State Perfusionist Licensing Program Title 25 (Health Services), Texas Administrative Code, Chapter 140

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1 Texas State Title 25 (Health Services), Texas Administrative Code, Chapter 140 Adopted effective April 18, 1995, 20TexReg 2527; amended to be effective June10, 2001, 26 TexReg 3932; transfered effective September 1; 2005 as published in the Texas Register August 26, 2005, 30 TexReg 5007; amended to be effective June 29, 2006, 31 TexReg 5126; amended November 4, 2010, 35 Tex Reg Texas State Department of State Health Services P.O. Box Mail Code 1982 Austin, Texas / PHONE 512/ FAX

2 Table of Contents Section Title Page Definitions Fees Professional and Ethical Conduct Educational Requirements for Licensure Examination for Perfusionist Licensure Jurisprudence Examination Application Procedures Determination of Eligibility Provisional Licensed Perfusionist Licensing After Examination Changes of Name or Address License Renewal Minimum Continuing Education Licensing of Persons with Criminal Backgrounds to be a 11 Perfusionist and Provisional Licensed Perfusionist Violations, Complaints, and Subsequent Board Actions Formal Hearings Informal Disposition Default Orders Suspension of License for Failure to Pay Child Support Relevant Factors Severity Levels and Sanction Guide Texas State Perfusionist Advisory Committee Request for Criminal History Evaluation Letter. 19

3 140.1 Definitions The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: (1) Act--The Licensed Perfusionists Act, Texas Occupations Code, Chapter 603. (2) Administrative Law Judge--A judge employed by the State Office of Administrative Hearings. (3) APA--The Administrative Procedure Act, Government Code. (4) Committee--The Texas State Perfusionist Advisory Committee. (5) Cardiopulmonary Surgery--Surgery pertaining to the heart, great vessels, or lungs. (6) Commissioner--The Commissioner of the Department of State Health Services. (7) Contested Case--A proceeding in accordance with APA and this chapter, including, but not restricted to, rule enforcement and licensing, in which the legal rights, duties, or privileges of a party are to be determined by the Commissioner after an opportunity for an adjudicative hearing. (8) Delegated authority--as defined in the Texas Medical Practice Act, Texas Occupations Code, Chapter 157(d)(1), and the rules pertaining thereto adopted by the Texas State Board of Medical Examiners. (9) Department--The Department of State Health Services. (10) Executive Commissioner--The Executive Commissioner of the Health and Human Services Commission. (11) Extracorporeal circulation--the diversion of a patient's blood through a heart-lung machine or a similar device that assumes the functions of the patient's heart, lungs, or both. (12) Formal hearing--a formal hearing or proceeding in accordance with this chapter and includes a contested case. (13) Formally trained--completion of an organized educational activity which: (A) includes supervised and directed instruction specific to the perfusion procedures to be performed by the individual; (B) includes specific objectives, activities and an evaluation of competency; and (C) is specifically supervised and directed by another individual qualified to provide the training and supervision. 14) Health care professional--a licensed perfusionist, provisional licensed perfusionist, or any person licensed, certified, or registered by the state in a health-related profession. (15) Licensed perfusionist--a person licensed under the Act who practices perfusion. (16) Licensed physician--a physician licensed under Texas Occupations Code, Chapter 155, by the Texas State Board of Medical Examiners. (17) Licensee--A person who holds a current license as a perfusionist or provisional licensed perfusionist issued by the department. (18) Perfusion--The function necessary for the support, treatment, measurement, or supplementation of the cardiovascular, circulatory, or respiratory system, or a combination of those activities, and to ensure the safe management of physiologic functions by monitoring the parameters of the system under an order and under the supervision of a licensed physician, including: (A) the use of extracorporeal circulation, cardiopulmonary support techniques, and other therapeutic and diagnostic technologies; (B) counterpulsation, ventricular assistance, or autotransfusion (including blood conservation techniques), administration of cardioplegia, and isolated limb perfusion; (C) the use of techniques involving blood management, advanced life support, and other related functions; and (D) in the performance of the acts described in this subsection: (i) the administration of: (I) pharmacological and therapeutic agents; or (II) blood products or anesthetic agents through the extracorporeal circuit or through an intravenous line as ordered by a physician; (ii) the performance and use of: (I) anticoagulation analysis; (II) physiologic analysis; (III) blood gas and chemistry analysis; (IV) hematocrit analysis; (V) hypothermia; (VI) hyperthermia; (VII) hemoconcentration; and 25 Texas Administrative Code, Chapter 140 Page 1

4 (VIII) hemodilution; and (iii) the observation of signs and symptoms related to perfusion services, the determination of whether the signs and symptoms exhibit abnormal characteristics, and the implementation of appropriate reporting, perfusion protocols, or changes in or the initiation of emergency procedures. (19) Perfusionist--An individual who practices perfusion. (20) Perfusion protocols--perfusionrelated policies and protocols developed or approved by a licensed health facility or a physician through collaboration with administrators, licensed perfusionists, and other health professionals. (21) Pleading--Any written allegation filed by a party concerning its claim or position. (22) Presiding Officer--Presides over the Committee and serves at the pleasure of the Commissioner. (23) Provisional licensed perfusionist--a person provisionally licensed under the Act Fees (a) The schedule of fees for licensure as a perfusionist or a provisional licensed perfusionist is as follows: (1) application and initial license fees-- $175; (2) license fee for upgrade of provisional licensed perfusionist--$75; (3) a license renewal issued for a oneyear term--$175; (4) a license renewal issued for a twoyear term--$350; (5) late renewal fee (prior to September 1, 2007)--$100; (6) late renewal fee (on or after September 1, 2007): (A) less than 90 days late--a fee that is equal to 1/4 times the amount of the renewal fee due; or (B) more than 90 days and less than one year late--a fee that is equal to 1/2 times the amount of the renewal fee due; (7) license certificate and identification card replacement fee--$10; (8) child support reinstatement fee--$40; (9) student loan default reinstatement fee--$40; (10) verification fee--$10 per licensee; and (11) retired perfusionist license renewal issued for a two-year term (in accordance with (f) of this title relating to License Renewal)--$175. and (12) criminal history evaluation letter fee--$50. (b) An applicant whose check for the application fee is not honored by the financial institution may reinstate the application by remitting to the department a money order or check for guaranteed funds within 30 days of the date of receipt of the department's notice. An application will be considered incomplete until the fee has been received and cleared through the appropriate financial institution. (c) A licensee whose check for the renewal fee is not honored by the financial institution may remit to the department a money order or check for guaranteed funds within 30 days of the date of receipt of the department's notice. Otherwise, the license shall not be renewed. If a renewal card has already been issued, it shall be subject to revocation. (d) Fees paid to the department by applicants are not refundable. (e) Any remittance submitted to the department in payment of a required fee must be in the form of a personal check, certified check, or money order. f) The department shall make periodic reviews of its fee schedule and make any adjustments necessary to provide funds to meet its expenses without creating an unnecessary surplus. Such adjustments shall be through rule amendments. (g) For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online. (h) For all applications and renewal applications, the department is authorized to collect fees to fund the Office of Patient Protection, Health Professions Council, as mandated by law Professional and Ethical Conduct (a) Code of ethics. These rules shall constitute a code of ethics as authorized by the Act, (6). (1) Professional representation and responsibilities. (A) A licensee shall not misrepresent his or her professional qualifications or credentials. (B) A licensee shall not make any false or misleading claims pertaining to the indications and efficacy of the practice of perfusion. 25 Texas Administrative Code, Chapter 140 Page 2

5 (C) A licensee shall not permit the use of his or her name for the purpose of certifying that perfusion services have been rendered unless that licensee has provided those services. (D) A licensee shall not promote or endorse products in a manner that is false or misleading. (E) A licensee shall disclose to the reimbursing entity any personal gain or profit from any supply, procedure or service. (F) A licensee shall have the responsibility of reporting alleged misrepresentations or violations of department rules to the executive secretary. (G) A licensee shall comply with any order relating to the licensee which is issued by the department. (H) A licensee shall not aid or abet the practice or misrepresentation of an unlicensed person when that person is required to have a license under the Act. (I) A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee. J) A licensee shall not interfere with an investigation or disciplinary proceeding by willful misrepresentation of facts to the department or its authorized representative or by the use of threats or harassment against any person associated with investigation or disciplinary proceedings. (K) The licensee who willfully misstates fact during the application, examination, or recertification processes is guilty of unethical conduct. Likewise the willful misstatement of fact regarding the title or membership in a professional community is considered unethical conduct. (L) The licensee who consciously fails to promote both the safety and protection of the public is guilty of unethical conduct. (M) The licensee who willfully disregards the patient for monetary gain is guilty of unethical conduct. Examples of such conduct are unjustified reimbursement for services performed or prejudicial compensation. (N) The licensee who shows willful disregard for sound patient care by acts of omission is guilty of unethical conduct. (O) A licensee shall subscribe to all other applicable ethical standards of the medical community. (P) The licensee accepts the responsibility for subscribing to the preceding Code of Ethics and for reporting unethical professional conduct. (Q) A licensee shall supervise a provisional licensed perfusionist in accordance with of this title (relating to Provisional Licensed Perfusionists). (2) Professional relationships. (A) A licensee shall make known to a prospective reimbursing entity the important aspects of the professional relationship including fees and arrangements for payment which might affect the reimbursing entity's decision to enter into the relationship. (B) A licensee shall bill a reimbursing entity in the manner agreed to by the licensee and entity in accordance with 42 United States Code 1395nn, relating to the anti-kickback statute and the Health and Safety Code, , relating to illegal renumeration. (C) A licensee shall not receive or give a commission or rebate or any other form of renumeration for the referral of professional services. (D) A licensee shall disclose to the reimbursing entity any interest in commercial enterprises relating to the practice of perfusion which the licensee promotes for the purpose of personal gain or profit. (E) A licensee shall practice perfusion without discrimination based on race, creed, gender, religion, national origin, age, sexual orientation, or genetic information. (F) A licensee shall not violate any provision of any federal or state statute relating to confidentiality of patient communications and records. (G) A licensee shall not engage in sexual contact with a patient. The term "sexual contact" means any type of sexual behavior described in the Texas Penal Code, Chapters 21, 22 or 43 and includes sexual intercourse. (3) Billing information required; prohibited practices. (A) On the written request of a patient, a patient's guardian, a patient's parent if the patient is a minor, or the billing entity, a licensee shall provide, in plain language, a written explanation of the charges for acts of perfusion previously made on a bill or statement for the patient. This requirement applies even if the charges are to be paid by a third party. (B) A licensee may not overcharge or overtreat a patient. (4) Sanctions. A licensee shall be subject to disciplinary action by the department if under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Article 56.31, the licensee is issued a public letter of reprimand, is assessed a civil penalty by a 25 Texas Administrative Code, Chapter 140 Page 3

6 court, or has an administrative penalty imposed by the attorney general's office. (b) Disclosure. A licensee shall make a reasonable attempt to notify each patient of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department by providing notification: (1) on each written contract for services of a licensee; or (2) on a sign prominently displayed in the primary place of business of each licensee; or (3) in a bill for service provided by a licensee to a patient or reimbursing entity. (c) Unlawful false, misleading, or deceptive advertising. A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. False, misleading, or deceptive advertising or advertising that is not really subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (4) contains a testimonial; (5) causes confusion or misunderstanding as to the credentials, education, or licensure of a perfusionist; (6) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (7) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (9) advertises or represents, in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional Educational Requirements for Licensure General. (1) The department shall approve as meeting licensure requirements a perfusion education program that has educational standards that are as stringent as those established by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or their successors. (2) Degrees and course work received in foreign countries shall be acceptable only if the degree or coursework has educational standards that are as stringent as those established by the AC-PE and approved by CAAHEP or their successors. (3) A foreign training program shall be acceptable only if it has educational standards as stringent as those established by the AC-PE and approved by the CAAHEP or their successors. (4) In the event that an educational deficiency is present, an applicant will have one year in which to complete the additional course work acceptable to the department before the application will be voided and the applicant will be required to reapply and to pay an additional application fee Examination Procedures for Perfusionist Licensure (a) Frequency. Examinations will be administered for the department at least once each year by a designee of the department. (b) Requirements. (1) The executive secretary shall notify an applicant when all requirements for licensure have been met except the taking and passing of the required examination. The department shall forward or cause to be forwarded an examination registration form to each approved applicant as soon as the application has been approved. (2) An applicant who wishes to take a scheduled examination must complete the examination registration form which must be received by the department or designee by the deadline established by the department. The fee shall be paid to the designee of the department. (3) The examination for licensure shall be an examination approved by the department. A designee of the department shall administer and grade examinations and report to the department if the applicant has passed or failed the examination. (4) If an applicant has already successfully completed the required examination or the examination administered by the American Board of Cardiovascular Perfusion (ABCP), the applicant shall not be required to be reexamined, provided the applicant 25 Texas Administrative Code, Chapter 140 Page 4

7 furnishes the department a copy of the test results indicating that the applicant passed the examination and proof that he or she has been certified by the ABCP for some time period within three years immediately preceding date of application. (5) An applicant who fails four examinations may not reapply as a provisional licensed perfusionist Jurisprudence Examination (a) The department shall develop and administer a jurisprudence examination to determine an applicant's knowledge of the Act, this section, and any other applicable laws of this state affecting the practice of perfusion. (b) The examination shall be administered in a web-based format through an examination contract, which specifies that applicants for examination must be able to: (1) pay the examination fee online by credit card; and (2) receive their examination results electronically immediately upon completion of the examination. (c) The department shall revise the jurisprudence examination as needed. (d) All applicants for licensure must pass the jurisprudence examination prior to submitting an application for licensure. The jurisprudence examination must be taken and passed no more than two years prior to the date of the application for licensure Application Procedures (a) Fitness of applicants for perfusion licensure. (1) In determining the qualifications of applicants for licensure the department may request and consider any of the following: (A) evaluations of supervisors or instructors; (B) evaluations of employers or professional associations; (C) transcripts or findings from official court, hearing or investigative proceedings; and (D) any other information which the department considers pertinent to determining the qualifications of an applicant. (2) The substantiation of any of the following items related to an applicant may be, as the department determines, the basis for the denial of licensure of the applicant: (A) lack of the necessary skills and abilities to provide adequate perfusion services; (B) misrepresentation of professional qualifications, credentials or associations; (C) misrepresentation of perfusion services and the efficacy of perfusion services to clients; (D) use of misleading advertising or false advertising; (E) violation of any provision of any federal or state statute relating to confidentiality of client communication and records; (F) abuse of alcohol or drugs or the use of illegal drugs of any kind in any manner which detrimentally affects the provision of perfusion services; and (G) any misrepresentation in application or other materials submitted to the department. (b) General Procedures. (1) An applicant must submit a sworn application and all required information and documentation of credentials on official department forms. (2) The department will not consider an application as officially submitted until the applicant pays the application fee and submits all required written documentation. The application and initial license fee must accompany the application form. (3) The executive secretary will send a notice listing the additional materials required to an applicant who does not complete the application in a timely manner. An application not completed within 30 days after the date of the department's notice shall be void. (c) Required application materials. (1) The application form shall contain: (A) specific information regarding personal data, social security number, date of birth, place of employment, other state licenses and certifications held, misdemeanor and felony convictions, educational and training background, and work experience; (B) a statement that the applicant has read the Act and rules and agrees to abide by them; (C) the applicant's permission for the department to seek any information or references it deems appropriate to determine the applicant's qualifications and fitness; (D) a statement that the applicant, if issued a license, shall return the license certificate and license identification card to the department upon the revocation or suspension of the license; (E) a statement that the applicant has been informed that fees submitted in the licensure process are nonrefundable; 25 Texas Administrative Code, Chapter 140 Page 5

8 (F) a statement that the applicant has been informed that materials submitted in the licensure process become the property of the department and are nonreturnable; and (G) the signature of the applicant which has been dated and notarized. (2) Applicants must submit official transcript(s) from a perfusion education program approved by the department or from a program with requirements as stringent as those established by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or their successors. (3) If submitting an equivalent program, the burden is on an applicant to establish that program requirements are as stringent as those established by the AC-PE and approved by the CAAHEP or their successors. (4) Applicants must submit a full-face photo, a minimum in size of 1 1/2 inches by 1 1/2 inches, signed on the reverse side with the applicant's signature as it appears on the application. The photograph must have been taken within the two-year period prior to application. (5) If an applicant is or has been licensed, certified, or registered in another state, territory, or jurisdiction, the applicant must submit information required by the department concerning that license, certificate or registration on official department forms. (6) Curriculum vitae, resumes, and other documentation of the applicant's credentials may be submitted. (7) An applicant applying for licensing by endorsement shall submit a copy of the license or certificate by which the reciprocal license is requested and the name and address of the licensing or certifying agency. (8) An applicant for provisional licensed perfusionist must have his or her supervising licensed perfusionist or an appropriately licensed physician sign the applicant form Determination of Eligibility (a) The department shall notify an applicant in writing of the receipt of the applicant's application and any other relevant evidence relating to qualifications established by rule. The notice must state whether the applicant has qualified for examination or licensure based on the application and other submitted evidence. If the applicant is not qualified, the notice must state the reasons for the applicant's failure to qualify. (b) The department may deny the application if the person has: (1) not completed the requirements in of this title (relating to Educational Requirements for Licensure). (2) failed to pass the examination prescribed by the department as set out in of this title (relating to Examination Procedures for Perfusionist Licensure), if applicable; (3) failed to remit any applicable fees required in of this title (relating to Fees); (4) failed or refused to properly complete or submit any application form(s) or endorsement(s), or presented false information on the application form, or any other form or document required by the department to verify the applicant's qualifications for licensure; (5) been in violation of the Act, the Code of Ethics, or any other provision of this title; (6) been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee as set out in of this title (relating to Licensing of Persons with Criminal Backgrounds To Be a Licensed Perfusionist and Provisional Licensed Perfusionist), and in Texas Occupations Code, Chapter 53. (7) had a license, registration, certificate, or certification to practice perfusion in another state or jurisdiction which has been suspended, revoked, or otherwise restricted by the licensing entity or American Board of Cardiovascular Perfusion; or (8) demonstrated lack of necessary skills and ability to provide adequate perfusion services. (c) If after review, the department determines that the application should not be approved, the executive secretary shall give the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing and an informal settlement conference. The notice and hearing shall be in accordance with of this title (relating to Violations, Complaints, and Subsequent Department Actions). (d) An applicant whose application has been denied under subsection (b)(4), (5), (6), (7), or (8) of this section shall be permitted to reapply after a period to be determined by the department. The applicant shall submit with the reapplication, proof satisfactory to the department of compliance with all rules of the department and the provisions of the Act in effect at the time of reapplication. (e) Processing procedures are as follows. (1) Time periods. The department shall comply with the following procedures in processing application for licensure and renewal. (A) The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the 25 Texas Administrative Code, Chapter 140 Page 6

9 application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are as follows: (i) letter of acceptance of application for licensure - 14 working days; (ii) letter of application deficiency - 14 working days; and (iii) issuance of license renewal after receipt of documentation of all renewal requirements - 30 working days. (B) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. For the purpose of this section, an application is not considered complete until any required examination has been successfully completed by the applicant. The time period for denial include notification of the proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. The time periods are as follows: (i) letter of approval examination - 20 working days; (ii) initial letter of approval for licensure (exam waived) - 20 working days; (iii) letter of denial of licensure - 20 working days; (iv) issuance of license renewal after receipt of documentation of all renewal requirements - 30 working days. (2) Reimbursement of fees. (A) In the event an application is not processed in the time periods stated in paragraph (1) of this subsection, the applicant has the right to request reimbursement of all fees paid in the particular application process. Application for reimbursement shall be made to the executive secretary. If the executive secretary does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied. (B) Good cause for exceeding the time period is considered to exist if: (i) the number of applications for licensure and licensure renewal exceeds by 15% or more the number of applications processed in the same calendar quarter the preceding year; or (ii) another public or private entity relied upon by the department in the application process caused the delay; or (iii) any other condition exists giving the department good cause for exceeding the time period. (3) Appeal. If a request for reimbursement under paragraph (2) of this subsection is denied by the executive secretary, the applicant may appeal in writing to the department. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made. (4) Contested cases. The time periods for contested cases related to the denial of licensure or license renewals are not included within the time periods stated in paragraph (1) of this subsection. The time period for conducting a contested case hearing runs from the date the department receives a written request for a hearing and ends when the decision of the commissioner is final and appealable. A hearing may be completed within one to four months, but may extend for a longer period of time depending on the particular circumstances of the hearing Provisional Licensed Perfusionists (a) Supervision. (1) To meet licensure and license renewal requirements, a provisional licensed perfusionist shall be under the supervision and direction of a currently licensed perfusionist who resides in Texas. (2) Supervision and direction shall be defined as procedural guidance provided by a licensed perfusionist and need not be on site. (3) The supervising licensed perfusionist must sign the application for a provisional license and the application for renewal of the provisional license. (b) Termination. The supervising licensed perfusionist must submit written notification of termination of supervision to the department and the supervisee within 14 days of when supervision has ceased. The provisional licensed perfusionst shall make a good faith effort to ensure that the supervising licensed perfusionist submits an appropriate notification. (c) Changes. Any change in the supervision shall be submitted in writing to the Executive Secretary. The signature of the supervising licensed perfusionist shall be included in the written notice. (d) Required supervisor. A provisional licensed perfusionist must have a supervising licensed perfusionist at all times whether or not the provisional licensed perfusionist is actively employed. 25 Texas Administrative Code, Chapter 140 Page 7

10 (e) Time limits. A provisional license is valid for one year from the date it is issued and may be renewed annually for not more than three times by the procedures set out at of this title (relating to License Renewal). (f) Variance. An applicant or provisional licensee may request the department to approve that supervision and direction be performed by a licensed physician in lieu of a licensed perfusionist. (1) The request for a variance must be in writing and must include the following: (A) the individual's name and address; (B) the reason(s) why a licensed perfusionist is not reasonably available to provide supervision and direction; and (C) the name, address, and copies of the credentials for verification that the physician is licensed by the Texas State Board of Medical Examiners and certified and/or eligible for certification by the American Board of Thoracic Surgeons, Inc., or certified and/or eligible for certification in cardiovascular surgery by the American Osteopathic Board of Surgery. (2) The applicant will be notified of approval or denial of the request in writing Licensing After Examination (a) Issuance of licenses. (1) Upon request the department shall send each applicant who has been approved and who has passed the examinations, if applicable, a form to complete and return with the upgrade fee, if applicable. (2) Upon receiving an applicant's form and fee, the department shall issue a license certificate and license identification card containing a license number. (b) Replacement. The department shall replace a lost, damaged, or destroyed license certificate or identification card upon a written request from the licensee and payment of the license replacement fee. Requests shall include a statement detailing the loss or destruction of the licensee's original license or identification card or be accompanied by the damaged certificate or card. (c) License certificates. (1) The department shall prepare and provide to each licensee a license certificate and identification card which contains the licensee's name, license number, and expiration date. (2) Official license certificates shall be signed by the executive secretary. Official identification cards shall be signed by the executive secretary and the licensee. (3) Any certificate or identification card issued by the department shall remain the property of the department and must be surrendered to the department on demand. (4) The license certificate must be displayed in an appropriate and public manner as follows: (A) The license certificate shall be displayed in the primary office or place of employment of the licensee. (B) In the absence of a primary office or place of employment, or when the licensee is employed at multiple locations, the licensee shall carry a current identification card. (d) Upgrading a provisional license. (1) The provisional licensed perfusionist shall submit to the department a photocopy of the examination results from the American Board of Cardiovascular Perfusion and a written request to upgrade. (2) The provisional licensed perfusionist who successfully completes the licensing examination shall surrender to the department the provisional license certificate and provisional license identification card, and submit the license fee for upgrade of provisional licensed perfusionist to licensed perfusionist. (3) If the provisional licensed perfusionist is not eligible for upgrade, the executive secretary shall notify the provisional licensed perfusionist in writing of the reasons for denial and the additional documentation needed to meet the minimum requirements for licensure as a licensed perfusionist Changes of Name or Address (a) The licensee shall notify the department of changes in name or preferred mailing address within 30 days of such change(s). (b) Notification of address changes shall be made in writing including the name, mailing address, and zip codes, and be mailed to the executive secretary. (c) Before another license certificate and identification card will be issued by the department, notification of name changes must be mailed to the executive secretary and shall include a duly executed affidavit and a copy of a marriage certificate, court decree evidencing such change, or a Social Security card reflecting the new name. The licensee shall return any previously issued license certificate and identification card and remit the appropriate replacement fee as set out in of this title (relating to Fees). 25 Texas Administrative Code, Chapter 140 Page 8

11 License Renewal (a) General. (1) When issued, a license is valid until the licensee's next birth month. (2) A licensee must renew the license annually or biannually, as determined by the department. (3) The renewal date of a license shall be the last day of the licensee's birth month. (4) Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification from the executive secretary prior to the expiration date of the license shall not excuse failure to file for renewal or late renewal. (5) The department shall not renew the license of the licensee who is in violation of the Act or rules at the time of application for renewal. (6) The department shall deny renewal of the license of a licensee if renewal is prohibited by the Education Code, relating to student loan default. (7) The department shall deny renewal of the license of a licensee for whom a contested case is pending until resolution of the case, but such individual remains licensed pending resolution of the contested case, if timely application for renewal is made. (8) The department may refuse to renew the license of a person who fails to pay an administrative penalty imposed under the Act unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed. (9) A licensee who has been notified of a student loan default shall surrender their license until the loan payment has been resolved to the satisfaction of the National Student Loan Center. (10) A licensee shall pay a late renewal fee as set out in of this title (relating to Fees) prior to issuance of the license under this section. (b) License renewal requirements. (1) At least 30 days prior to the expiration date of a person's license, the executive secretary shall send notice to the licensee at the address in the department's records of the expiration date of the license, the amount of the renewal fee due, and a license renewal form which the licensee must complete and return to the department with the required renewal fee. The return of the completed renewal form in accordance with the requirements of paragraph (3) of this subsection shall be considered confirmation of the receipt of renewal notification. 2) The license renewal form for all licensees shall require the provision of the preferred mailing address, primary employment address and telephone number, and misdemeanor and felony convictions. The license renewal form for the provisional licensed perfusionist shall be signed by the supervising licensed perfusionist or approved licensed physician and indicate whether the supervisor and supervisee have complied with this chapter. (3) A licensee has renewed the license when the licensee has mailed the renewal form and the required renewal fee to the executive secretary prior to the expiration date of the license. The postmark date shall be considered as the date of mailing. (4) The department shall issue to a licensee who has met all requirements for renewal a license certificate and identification card. (c) Late renewal requirements. (1) The executive secretary shall inform a person who has not renewed a license after a period of more than 90 days after the expiration of the license of the amount of the fee required for renewal and the date the license expired. (2) A person whose license has expired for not more than one year may renew the license by submitting the license renewal form and the appropriate renewal and late renewal fees to the executive secretary. The renewal is effective if it is mailed to the executive secretary within one year after the expiration date of the license. The postmark date shall be considered as the date of mailing. (3) A person whose license has been expired one year or more may not renew the license. The person may obtain a new license by complying with the current requirements and procedures for obtaining an original license. (d) Expiration of license. (1) A person whose license has expired may not use the title or represent or imply that he has the title of "licensed perfusionist" or "provisional licensed perfusionist" or use the letters "LP" or "PLP", and may not use any facsimile of those titles in any manner. (2) A person who fails to renew a license after one year shall surrender the license certificate and license identification card to the department. (e) Active duty. If a licensee fails to timely renew his or her license on or after August 1, 1990, and the licensee is or was on active duty with the armed forces of the United States of America, the licensee may renew the license in accordance with this subsection. (1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and 25 Texas Administrative Code, Chapter 140 Page 9

12 telephone number for the individual requesting the renewal. (2) Renewal may be requested before or after expiration of the license. (3) A copy of the official orders or other official military documentation showing that the licensee is or was on active duty shall be filed with the department along with the renewal form. (4) A copy of the power of attorney from the licensee shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection. (5) A licensee renewing under this subsection shall pay the applicable renewal fee, but not the late renewal fee. (f) Renewal for Retired Perfusionists Performing Voluntary Charity Care. (1) A "retired perfusionist" is defined as a person who is: (A) above the age of 55; and (B) is not employed for compensation in the practice of perfusion; and (C) has notified the department in writing of his or her intention to retire and provide only voluntary charity care. (2) "Voluntary charity care" for the purposes of this subsection is defined as the practice of perfusion by a retired perfusionist without compensation or expectation of compensation. (3) A retired perfusionist providing only voluntary charity care may renew his or her license by submitting a renewal form; the retired perfusionist renewal fee required by of this title (relating to Fees); and the continuing education hours required by of this title (related to Minimum Continuing Education Requirements) Minimum Continuing Education Requirements (a) Completion of continuing education (CE) requirements with current certification by the American Board of Cardiovascular Perfusion (ABCP) or its successor agency. Completion of continuing education requirements shall be documented by demonstrating current certification by the ABCP annual license renewal. (b) Completion of CE requirements without current certification by the ABCP. Licensed perfusionists without current certification by the ABCP at the time of license renewal must meet the following criteria. (1) Document a minimum of 45 continuing education credit (CEUs) in a three-year period by submitting the professional activity report on the approved form every third year. A minimum of 15 hours of CEU must be earned in Category I. The activity period covered in the professional activity report is from the date of licensure to the third licensure renewal date and every subsequent third license renewal date. (2) Document a minimum of 40 clinical perfusions in a one-year period by submitting the clinical activity report on the approved form upon annual license renewal. The first clinical activity report from a newly licensed perfusionist is due on the second license renewal date. (3) One CEU or contact hour activity is defined as 50 minutes spent in an organized, structured or unstructured learning experience. Categories of CEU activities are: (A) Category I--Perfusion Meetings and Other Perfusion Related Activity--Perfusion meetings are those programs and seminars in which a minimum of 75% of the contact hours consist of perfusion related material. Only those meetings approved by the ABCP will qualify for Category 1 hours. Examples: (i) International, national regional, and state perfusion meetings. (ii) Publication of perfusion related book chapter or paper in a professional journal. (iii) Presentation at an international, national, regional or state perfusion journal. (B) Category II--Non- Accredited Perfusion Meetings and Other Medical Meetings--This category includes international, national, regional, and state meetings that have not been approved by the ABCP, local perfusion meetings and all other medically related meetings. Examples: (i) International, National, Regional, and State, perfusion meetings that have not been accredited by the ABCP. (ii) Local perfusion meetings (do not require ABCP accreditation). Any perfusion meeting NOT EQUALLY ACCESSIBLE to the general CCP community, this includes manufacturerspecific and company-sponsored educational activities. (iii) International, National, Regional, or Local medically-related meetings. (C) Category III--Individual Education and Other Self-Study Activities Credit in this category is acquired on an hour for hour basis of the time spent in these non-accredited or non-supervised activities. Examples: (i) Reading or viewing medical journals, audio-visual, or other educational material. 25 Texas Administrative Code, Chapter 140 Page 10

13 (ii) Participation in electronic forums. (iii) Participation in a Journal Club. (iv) Participation in degree-oriented, professional-related course work. (v) Presentation of perfusion topic at a non-perfusion meeting. (D) A minimum of 40 clinical perfusions per year are required of every licensed perfusionist. A maximum of 15 activities may be documented as intraoperative pump standbys. (E) 40 cases are required each year as the Primary Perfusionist for Cardiopulmonary bypass, ECMO, VAD, Isolated Limb Perfusion, or VENO- VENO bypass, or documented intraoperative pump standby. For each ECMO or VAD case, one case credit will be awarded for initiating and/or managing an eighthour shift. (4) Documentation of activities. Licensed perfusionists are responsible for providing documentation of their professional activities. This documentation must be submitted along with the professional activity report. Credit will not be granted for activities that are not documented. The suitable documentation is outlined as follows: (A) Category I--Perfusion meetings--approved perfusion meetings held before June 30, 1998, may be documented by copies of registration receipts or official meeting name tags. For approved perfusion meetings held after June 30, 1998, an official document from the meeting sponsor documenting attendance and the number of hours received must be provided. (i) Perfusion Publications must have complete reference of book or article (authors, title, journal and date/volume of journal. (ii) Perfusion Presentations must have copy of program agenda. (B) Category II--International, national, regional, and state perfusion meetings not accredited by the ABCP, local perfusion meetings and all other medical meetings--must provide an official document stating CEUs awarded and copy of the meeting program. (C) Category III--All self-study activities will require an official record of completion or written summary of the activity. (c) Exceptions. Any deviation from the continuing education requirements will be reviewed on a case-bycase basis by the department. A request for special consideration shall be submitted in writing a minimum of 60 days prior to expiration of the license. (d) Licensees who are approved by the department for renewal in accordance with (f) of this title (relating to Retired Perfusionists Performing Voluntary Charity Care) may complete reduced continuing education requirements equal to two-thirds of the number of continuing education hours required for renewal for a licensed perfusionist Licensing of Persons with Criminal Backgrounds To Be a Licensed Perfusionist and Provisional Licensed Perfusionist (a) Criminal convictions which directly relate to the profession of perfusion. (1) The department may suspend or revoke an existing license, disqualify a person from receiving a license, refuse to renew a license, or deny to a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee. (2) In considering whether a criminal conviction directly relates to the occupation of a licensed perfusionist or provisional licensed perfusionist, the department shall consider: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the purposes for licensure as a perfusionist or provisional perfusionist. The following felonies and misdemeanors listed in clauses (i) - (iv) of this subparagraph relate to the license of a perfusionist or provisional perfusionist because these criminal offenses indicate an inability or a tendency to be unable to perform as a licensed perfusionist or a provisional licensed perfusionist: (i) the misdemeanor of knowingly or intentionally acting as a licensed perfusionist or provisional licensed perfusionist without a license under the Act, 15, Texas Occupations Code, (ii) a misdemeanor or a felony offense involving moral turpitude; (iii) a conviction relating to health care fraud or individual excluded from the Medicare or Medicare programs due to Medicare or Medicaid fraud; (iv) a misdemeanor or felony offense under the following titles of the Texas Penal Code: (I) offenses against the person (Title 5); 25 Texas Administrative Code, Chapter 140 Page 11

14 (II) offenses against property (Title 7); (III) offenses against public order and decency (Title 9); (IV) offenses against public health, safety, and morals (Title 10); (V) offenses of attempting or conspiring to commit any of the offenses in this subsection (Title 4); and (VI) insurance claim fraud under the Penal Code, 32.55; and (v) the misdemeanors and felonies listed in clauses (i) - (iii) of this subparagraph are not inclusive in that the department may consider other particular crimes in special cases in order to promote the intent of the Act and these sections; (C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and (D) the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of a licensed perfusionist or provisional licensed perfusionist. In making this determination, the department will apply the criteria outlined in Texas Occupations Code, Chapter 53. (b) Procedures for revoking, suspending, or denying a license to persons with criminal backgrounds. (1) The committee's executive secretary will give written notice to the person that the department intends to deny, suspend, deny renewal of, or revoke the license in accordance with the provisions of the Administrative Procedure Act and Texas Government Code, Chapter 2001, and the department's formal hearing procedures, of this title (relating to Violations, Complaints, and Subsequent Department Actions) and of this title (relating to Formal Hearings). (2) If the department denies an application or renewal application for a license, or suspends, or revokes a license under this section, the executive secretary will give the person written notice: (A) of the reasons for the decision; and (B) that the person, after exhausting administrative appeals, may appeal in a district court of Travis County, Texas Violations, Complaints, and Subsequent Department Actions (a) Types of violations and prohibited actions. (1) A person may not knowingly or intentionally represent or imply that he or she has the title of "licensed perfusionist" or "provisional licensed perfusionist" or use the letters "LP" or "PLP" or any facsimile of those titles in any manner unless the person holds an appropriate license issued under the Act. (2) A person may not intentionally or knowingly represent or imply that he or she has the title of "certified clinical perfusionist" or use the letters "CCP" or any facsimile of that title in any manner unless the person is certified as a certified clinical perfusionist by the American Board of Cardiovascular Perfusion. (3) A licensee may not issue an insufficient funds check and fail to redeem such instrument within 10 days after being given written notice by the department. (4) A licensee may not violate any of the provisions of the Act or any rules in this section. (b) Filing of complaints. (1) A person wishing to complain about a prohibited act or alleged violation a licensee or other person acting as a perfusionist shall notify the executive secretary. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the executive secretary's office. (2) Upon receipt of a complaint, the executive secretary shall send to the complainant an acknowledgment letter and the department's complaint form, which the complainant will be requested to complete and return to the executive secretary before further action can be taken. If the complaint is made by a visit to the executive secretary's office, the form may be given to the complainant at that time; however, it must be completed and returned to the executive secretary before further action can be taken. Copies of the complaint form may be obtained from the department. (3) Anonymous written complaints shall be investigated by the executive secretary provided that the complainant provides sufficient information. (c) Investigation of complaints. (1) The executive secretary on behalf of the department is responsible for handling complaints. (2) If the executive secretary determines that the complaint does not come within the department's jurisdiction, the executive secretary shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such complaints. (d) Actions by executive secretary. (1) The department may take one or more of the following actions: (A) determine that an allegation is groundless and dismiss the complaint; or (B) determine that a nonlicensed person has committed a prohibited action 25 Texas Administrative Code, Chapter 140 Page 12

15 under subsection (b) of this section. The department shall consider the seriousness and the effects of the violation and shall initiate one of the following actions: (i) attempt to resolve the complaint by requesting the violator to stop the action immediately. If the violator complies, the executive secretary may close the complaint file; or (ii) ask the attorney general, district attorney, or county attorney to take appropriate legal action against the violator; or (C) determine that a licensee has violated the Act or a rule in this section and propose denial of renewal, revocation, or suspension of the license, reprimand, or probation of the license suspension. (2) Whenever the department dismisses a complaint or closes a complaint file, the department will give a summary report of the final action to the complainant, and the accused party. (e) Final action by the department. (1) If the department suspends a license, the suspension remains in effect until the department determines that the reasons for the suspension no longer exist. (2) During the time of suspension, the former license holder shall return the license certificate and license identification card to the department. (3) Upon showing of good cause by the former license holder, the department may probate the license suspension. (4) If a suspension overlaps a license renewal period, the former license holder must comply with the normal renewal procedures in these rules; however, the license will not be renewed until the department determines that the reasons for suspension have been removed. (5) If the department revokes the license, the former license holder must reapply in order to obtain a new license. The department will not issue a new license until the department determines that the reasons for revocation have been removed. The department may require an investigation and a recommendation from the executive secretary to assist the department in making its decision. (6) Upon revocation, the former license holder shall return the license certificate and license identification card to the department. (7) The department may assess administrative penalties for a violation of the Act or this chapter in accordance with the procedures established in Occupations Code, (f) Surrender of license. (1) A licensee may offer his or her license for surrender to the department office. The executive secretary will notify the licensee that the license has been received. (2) When a licensee has offered the surrender of his or her license after a complaint has been filed alleging violations of the Act or this chapter, and the executive secretary has accepted such a surrender, that surrender is deemed to be the result of a formal disciplinary action. (3) A license which has been surrendered may not be reinstated; however, that person may apply for a new license in accordance with the Act and this chapter. (g) Monitoring of licensees. The executive secretary shall monitor each licensee against whom a department order is issued to ascertain that the licensee performs the required acts. (h) Cease and Desist Order. If it appears to the commissioner that a person who is not licensed under the Act is violating the Act, a rule adopted under the Act, or another state statute or rule relating to the practice of perfusion, the commissioner after notice and an opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity. A violation of an order under this subsection constitutes grounds for the imposition of an administrative penalty by the department Formal Hearings (a) General. This section covers the formal hearing procedures and practices that will be used by the department in handling suspensions, revocation of license, denial of licenses, probating a license suspension, reprimanding a licensee, or refusal to renew a license. Such hearing will be conducted pursuant to the contested case provisions of the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, and will be held by the State Office of Administrative Hearings. (b) Notice requirements. (1) Notice of the hearing shall be given according to the notice requirements of APA. (2) If a party fails to appear or be represented at a hearing after receiving notice, the administrative law judge may proceed with the hearing or take whatever action is fair and appropriate under the circumstances. (3) All parties shall timely notify the administrative law judge of any changes in their mailing addresses. (c) Disposition of case. Unless precluded by law, informal disposition may be made of any contested case by agreed settlement order or default order. 25 Texas Administrative Code, Chapter 140 Page 13

16 (d) Agreements in writing. No stipulation or agreement between the parties with regard to any matter involved in any proceeding shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, dictated into the record during the course of a hearing, or incorporated in an order bearing their written approval. This rule does not limit a party's ability to waive, modify, or stipulate away any right or privilege afforded by these sections. (e) Final orders or decisions. (1) The final order or decision will be rendered by the department. The department is not required to adopt the recommendation of an administrative law judge and may take action as it deems appropriate and lawful. (2) All final orders or decisions shall be in writing and shall set forth the findings of fact and conclusions required by law. (3) All final orders shall be signed by a representative of the department. (4) A copy of all final orders and decisions shall be timely provided to all parties as required by law Informal Conference (a) Informal disposition of any complaint or contested case involving a licensee or an applicant for licensure may be made through an informal conference held to determine whether an agreed order may be approved. (b) If the department determines that the public interest might be served by attempting to resolve a complaint or contested case by an agreed order in lieu of a formal hearing, the provisions of this section shall apply. A licensee or applicant may request an informal conference; however, the decision to hold a conference shall be made by the department. (c) An informal conference shall be voluntary. It shall not be a prerequisite to a formal hearing. (d) The department shall decide upon the time, date, and place of the informal conference and provide written notice to the licensee or applicant of the same. Notice shall be provided no less than ten days prior to the date of the conference by certified mail, return receipt requested to the last known address of the licensee or applicant or by personal delivery. The 10 days shall begin on the date of mailing or personal delivery. The licensee or applicant may waive the 10 day notice requirement. (1) The notice shall inform the licensee or applicant of the following: (A) the nature of the alleged violation; (B) that the licensee may be represented by legal counsel; (C) that the licensee or applicant may offer the testimony of witnesses and present other evidence as may be appropriate; (D) that the licensee's or applicant's attendance and participation is voluntary; (E) that the complainant may be present; and (F) that the informal conference shall be canceled if the licensee or applicant notifies the executive secretary that he or she or his or her legal counsel will not attend. (2) A copy of this subsection concerning informal disposition shall be enclosed with the notice of the informal conference. (e) The conference shall be informal and shall not follow the procedures established in this chapter for contested cases and formal hearings. (f) The licensee, the licensee's attorney, and department staff may question witnesses, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate. (g) The department's legal counsel will be requested to attend each informal conference. The complaint committee member or executive secretary may call upon the department's attorney at any time for assistance in the informal conference. (h) The licensee shall be afforded the opportunity to make statements that are material and relevant. (i) Access to the department's investigative file may be prohibited or limited in accordance with the APA, Texas Government Code, Chapter 552, and the Texas Occupations Code, Chapter 603. (j) At the discretion of the department, a tape recording may be made of none or all of the informal conference. (k) The complainant shall not be considered a party in the informal conference but shall be given the opportunity to be heard if the complainant attends. Any written statement submitted by the complainant shall be reviewed at the conference. (l) At the conclusion of the informal conference, the department may make recommendations for informal disposition of the complaint or contested case. The recommendations may include any disciplinary action authorized by the Act. The department may also conclude that the department lacks jurisdiction, conclude that a violation of the Act or this chapter has not been established, or refer the matter for further investigation. (m) At the time of the informal conference, the licensee or applicant may either accept or reject the 25 Texas Administrative Code, Chapter 140 Page 14

17 conference recommendations. If the recommendations are accepted, an agreed order shall be prepared by the department or the department's legal counsel and forwarded to the licensee or applicant. The order shall contain agreed finding of fact and conclusions of law. The licensee or applicant shall execute the order and return the signed order to the department within ten days of his or her receipt of the order. If the licensee or applicant fails to return the signed order within the stated time period, the inaction shall constitute rejection of the conference recommendations. (n) If the licensee or applicant rejects the proposed recommendations, the department shall take appropriate action. (o) If the licensee or applicant signs and accepts the recommendations, the agreed order shall be submitted to the legal counsel for approval. The order shall contain agreed findings of fact and conclusions of law. (p) After consultation with legal counsel, the department shall enter an agreed order approving the accepted recommendations. (q) If the department does not approve a proposed agreed order, the licensee or applicant shall be so informed. The department shall take other appropriate action. (r) A licensee's opportunity for an informal conference under this section shall satisfy the requirement of the Texas Government Code, (c). (1) If the department determines that an informal conference shall not be held, the department shall give written notice to the licensee or applicant of the facts or conduct alleged to warrant the intended disciplinary action and the licensee or applicant shall be given the opportunity to show, in writing and as described in the notice, compliance with all requirements of the Act and this chapter. (2) The complainant shall be sent a copy of the written notice described in paragraph (1) of this subsection. The complainant shall be informed that he or she may also submit a written statement to the department. (s) Refund Order. The department may order a license holder to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty. The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the license holder for a service regulated by the Act and this section. The department may not require payment of other damages or estimate harm in a refund order Default Orders If a right to a hearing is waived, the department shall enter an order taking appropriate disciplinary action against the licensee as described in the written notice to the licensee or applicant Suspension of License for Failure to Pay Child Support or Compliance with Child Custody Order (a) On receipt of a final court order or attorney general's order suspending a license due to failure to pay child support or failure to be in compliance with a court order relating to child custody, the department shall immediately determine if a license has been issued to the obligator named on the order. If a license has been issued, the department shall: (1) record the suspension of the license in the department's records; (2) report the suspension as appropriate; and (3) demand surrender of the suspended license. (b) The department shall implement the terms of a final court order or attorney general's order suspending a license without additional review or hearing. The department will provide notice as appropriate to the licensee or to others concerned with the license. (c) The department may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Family Code, Chapter 232 as added by Acts 1995, 74th Legislature Chapter 751, 85 (HB 433) and may not review, vacate, or reconsider the terms of an order. (d) A licensee who is the subject of a final court order or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the department. (e) If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal procedures in the Act and this chapter; however, the license will not be renewed until subsection (g) and (h) of this section are met. (f) An individual who continues to use the titles "licensed perfusionist", or "provisional licensed perfusionist" after the issuance of a court or attorney general's order suspending the license is liable for the same civil and criminal penalties provided for engaging in the prohibited activity without a license or while a license is suspended as any other license holder of the department. 25 Texas Administrative Code, Chapter 140 Page 15

18 (g) On receipt of a court order or attorney general's order vacating or staying an order suspending a license, the department shall promptly issue the affected license to the individual if the individual is otherwise qualified for the license. (h) The individual must pay a reinstatement fee set out at of this title (relating to Fees) prior to issuance of the license under subsection (g) of this section Relevant Factors When a licensee has violated the Act or this chapter, three general factors combine to determine the appropriate sanction which include: the culpability of the licensee; the harm caused or posed; and the requisite deterrence. It is the responsibility of the licensee to bring exonerating factors to the attention of the department or administrative law judge. Specific factors are to be considered as set forth herein. (1) Seriousness of violation. The following factors are identified: (A) the nature of the harm caused, or the risk posed to the health, safety and welfare of the public, such as emotional, physical or financial; (B) the extent of the harm caused, or the risk posed, to the health, safety and welfare of the public; such as whether the harm is low, moderate or severe, and the number of persons harmed or exposed to risk; and (C) the frequency and timeperiods covered by the violations, such as whether there were multiple violations, or a single violation, and the period of time over which the violations occurred. (2) Nature of the violation. The following factors are identified: (A) the relationship between the licensee and the person harmed, or exposed to harm; (B) the vulnerability of the person harmed or exposed to harm; (C) the moral culpability of the licensee, such as whether the violation was: (i) intentional or premeditated; (ii) due to blatant disregard or gross neglect; or (iii) resulted from simple error or inadvertence; and (D) the extent to which the violation evidences a lack of character that could reasonably be assumed to affect the licensee's ability to safely or effectively engage in the practice of perfusion. (3) Personal accountability. The following factors are identified: (A) admission of wrong or error, and acceptance of responsibility; (B) appropriate degree of remorse or concern; (C) efforts to ameliorate the harm or make restitution; (D) efforts to ensure future violations do not occur; and (E) cooperation with any investigation or request for information. (4) Deterrence. The following factors are identified: (A) the sanction required to deter future similar violations by the licensee; (B) sanctions necessary to ensure compliance by the licensee of other provisions of the Act or this chapter; and (C) sanctions necessary to deter other licensees from such violations. (5) Miscellaneous Factors. The following factors are identified: (A) age and experience at time of violation; (B) presence or absence of prior or subsequent violations; (C) conduct and work activity prior to and following the violations; (D) character references; and (E) any other factors justice may require Severity Levels and Sanctions Guide The following severity levels and sanctions guides are based on the relevant factors in of this title (relating to Relevant Factors). (1) Level One--Revocation of license. These violations evidence intentional or gross misconduct on the part of the license, and/or cause or pose a high degree of harm to the public, and/or may require severe punishment as a deterrent to the licensee, or other licensees. The fact that a license is ordered revoked does not necessarily mean the licensee can never again regain licensure. In lieu of or in addition to revocation of license, the maximum administrative penalty of up to $5,000 per day a violation continues or occurs may be assessed for these violations. (2) Level Two--Extended suspension of license. These violations involve less misconduct, harm, or need for deterrence than Level One violations, but may 25 Texas Administrative Code, Chapter 140 Page 16

19 require termination of licensure for a period of not less than one year. In lieu of or in addition to extended suspension of license, a maximum administrative penalty of up to $3,000 per day a violation continues or occurs may be assessed for these violations. (3) Level Three--Moderate suspension of license. These violations are less serious than Level Two violations, but may require termination of licensure for a period of time less than a year. In lieu of or in addition to moderate suspension of license, a maximum administrative penalty of up to $1,000 per day a violation continues or occurs may be assessed for these violations. (4) Level Four--Probated suspension of licensure. These violations do not involve enough harm, misconduct, or need for deterrence to warrant termination of licensure, yet are severe enough to warrant monitoring of the licensee to ensure future compliance. Probationary terms may be ordered as appropriate. In lieu of or in addition to probated suspension of license, a maximum administrative penalty of up to $500 per day a violation continues or occurs may be assessed for these violations. (5) Level Five--Reprimand. These violations involve inadvertent or relatively minor misconduct and/or rule violations not directly involving the health, safety, and welfare of the public. In lieu of or in addition to the imposition of a reprimand, an administrative penalty of not less than $50 and up to $250 per day a violation continues or occurs may be assessed for these violations Texas State Perfusionist Advisory Committee (a) Officers. (1) The Presiding Officer shall be designated by the commissioner and serve at the pleasure of the commissioner. (2) The Assistant Presiding Officer shall perform the duties of the presiding officer in case of the absence or disability of the chairman. (3) In case the presiding officer becomes vacant, the assistant presiding officer shall serve until a successor is appointed by the commissioner. (b) Meetings. (1) The committee shall meet only to conduct committee business. (2) Special meetings may be called by the commissioner at such times, dates, and places as become necessary for the transaction of advisory committee business. (3) The committee is not a "governmental body" as defined in the Open Meetings Act. However, in order to promote public participation, each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551, with the exception that the provisions allowing executive sessions shall not apply. (c) Quorum. A simple majority of the committee members is necessary to conduct official business. (d) Transaction of official business. (1) The committee may transact official business only when in a legally constituted meeting with a quorum present. (2) Committee action shall require a majority vote of those members present and voting. (e) Policy against discrimination. The committee shall make no decision in the discharge of its statutory authority with regard to any person's race, color, disability, gender, religion, national origin, geographical distribution, age, physical condition, economic status, sexual orientation, or genetic information. (f) Conflict of interest. Any committee member who has a conflict of interest regarding any matter before the committee, such as a matter pertaining to an applicant's eligibility for licensure or a complaint against or a violation by a licensee, shall so declare this and shall not participate in any committee proceedings involving that individual or matter. (g) Membership and employee restrictions. (1) Texas trade association. A cooperative and voluntarily joined statewide association of business or professional competitors in this state designated to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interests. (2) A person may not be a committee member and may not be a department employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (U.S.C. 201 et seq.) if: (A) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or (B) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care. (3) A person may not be a member of the committee or act as the general counsel to the committee or the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the department. (h) Attendance. 25 Texas Administrative Code, Chapter 140 Page 17

20 (1) Members shall attend regular committee meetings as scheduled. (2) Upon request, the executive secretary shall report to the commissioner, governor and the Texas Sunset Advisory Commission the attendance records of members. (3) Except in case of emergency, committee members shall notify the presiding officer or executive secretary at least 48 hours prior to the scheduled meeting if unable to be present. (4) Except in case of emergency, the executive secretary shall notify the presiding officer at least 48 hours prior to the scheduled meeting if unable to be present. (5) It is grounds for removal from the committee if a member is absent from more than half of the regularly scheduled committee meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the committee. (i) Reimbursement for expense. A member is entitled to reimbursement for expenses as provided by the General Appropriations Act. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. (j) Rules of order. The latest edition of Roberts Rules of Order shall be the basis of parliamentary decisions except where otherwise provided by these committee rules. (k) Agendas. (1) The executive secretary shall prepare and submit to each member of the committee, prior to each meeting, an agenda which includes items requested by members, items required by law, unfinished business, and other matters of committee business which have been approved for discussion by the presiding officer. (2) The official agenda of a meeting shall be filed with the Texas Secretary of State in accordance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. (l) Minutes. (1) Drafts of the minutes of each meeting shall be forwarded to each member of the committee for review and comments prior to approval by the committee. (2) After approval by the committee, the minutes of any committee meeting are official only when affixed with the original signatures of the presiding officer and the executive secretary and official seal of the committee. (3) The official minutes of committee meetings shall be kept in the office of the executive secretary and shall be available to any person desiring to examine them during regular office hours. (m) Official records. (1) All official records of the committee including application materials, except files containing information considered confidential under the provisions of the Texas Open Records Act, Texas Government Code, Chapter 552, shall be open for inspection during regular office hours. (2) Official records may not be taken from committee offices; however, persons may obtain photocopies of files upon written request and by paying the cost per page set by the department. Payment shall be made prior to release of the records. (n) Official seal. The commissioner shall adopt an official seal for use in the course of official committee business as authorized by the Act, (5). (o) Registry. (1) The department shall prepare a registry of licensed perfusionists and provisionally licensed perfusionists that is available to the public, license holders, and appropriate state agencies. (2) The registry shall include, but not be limited to, the names of current licensees. (3) An original copy of the registry will be available for inspection by licensees and members of the public in the office of the executive secretary. (p) Public interest information. (1) The department shall prepare information of consumer interest describing the profession of perfusion, the regulatory functions of the department, and the procedures by which consumer complaints are filed with and resolved by the department. (2) The department shall make the information available to the public and appropriate state agencies. (q) Executive secretary powers and duties. In addition to performing other duties prescribed by this 25 Texas Administrative Code, Chapter 140 Page 18

21 section and by the department, the executive secretary shall: (1) administer licensing activity for the department; (2) keep full and accurate minutes of the committee's transactions and proceedings; (3) serve as custodian of the committee's files and other records; (4) prepare and recommend to the department plans and procedures necessary to implement the objectives of this chapter, including rules and proposals on administrative procedure; (5) exercise general supervision over persons employed by the department in the administration of this chapter; (6) investigate complaints and present formal complaints; (7) attend all committee meetings as a nonvoting participant; (8) handle the committee's correspondence; and (9) obtain, assemble, or prepare reports and other information as directed or authorized by the committee Request for Criminal History Evaluation Letter. requestor s eligibility that the department has to investigate a person applying for a license. (d) If the department determines that a ground for ineligibility does not exist, the department shall notify the requestor in writing of the determination. The notice shall be issued not later than the 90th day after the date the department received the request form, the criminal history evaluation letter fee, and any supporting documentation as described in the request form. (e) If the department determines that the requestor is ineligible for a license, the department shall issue a letter setting out each basis for potential ineligibility and the department s determination as to eligibility. The letter shall be issued not later than the 90th day after the date the department received the request form, the criminal history evaluation letter fee, and any supporting documentation as described in the request form. In the absence of new evidence known to but not disclosed by the requestor or not reasonably available to the department at the time the letter is issued, the department s ruling on the request determines the requestor s eligibility with respect to the grounds for potential ineligibility set out in the letter. (a) In accordance with Occupations Code, , a person may request the department to issue a criminal history evaluation letter regarding the person s eligibility for a license if the person: (1) is enrolled or planning to enroll in an educational program that prepares a person for an initial license or is planning to take an examination for an initial license; and (2) has reason to believe that the person is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense. (b) A person making a request for issuance of a criminal history evaluation letter shall submit the request on a form prescribed by the department, accompanied by the criminal history evaluation letter fee and the required supporting documentation, as described on the form. The request shall state the basis for the person s potential ineligibility. (c) The department has the same authority to investigate a request submitted under this section and the 25 Texas Administrative Code, Chapter 140 Page 19